(CN) — The Ninth Circuit Thursday considered whether it should reverse the dismissal of a case brought by a former Southern California mayor challenging the constitutionality of the California Voting Rights Act.
Former Poway Mayor Don Higginson sued the city of Poway and the state of California last fall over the city’s decision to create a new by-district voting system, ditching its at-large system for electing City Council members.
The move came after an attorney sent a demand letter to the city saying it needed to change its election system to comply with the California Voting Rights Act.
But Higginson claims the new by-district voting system and California Voting Rights Act violates the Equal Protection clause of the Fourteenth Amendment and amounts to racial gerrymandering.
Consovoy McCarthy Park attorney Jeffrey Harris, representing Higginson, told Circuit Judges Susan Graber, Milan Smith Jr. and Alvin Hellerstein that Poway’s City Council members only voted to change the voting system because they were threatened with litigation for violating the California Voting Rights Act.
He pointed to comments by a Poway council member who said “we have a gun to our head and have no choice” when voting to change the election system.
“It’s so easy to win on CVRA claims, all you have to do is show people of different races vote differently and basically ask the city for a check,” Harris said.
But Poway City Attorney Alan Fenstermacher said the city is taking a neutral position regarding the litigation and that its only goals were to limit the costs to taxpayers, follow the law and resolve the litigation quickly.
When Smith asked Fenstermacher if the city would have changed its way of electing council members were it not for the California Voting Rights Act, Fenstermacher responded that it was the “impetuous for the change” but that otherwise “I don’t think this was on the city’s radar at all.”
When Fenstermacher argued the city shouldn’t be sued since the lawsuit was a facial challenge to state law, Graber pointed out “it’s the city’s adoption of that map that is the problem,” referencing the newly created council districts.
“Because it’s a challenge to a state law we shouldn’t be put in a situation of litigating if the CVRA is constitutional,” Fenstermacher retorted.
He suggested the law is similar to the Americans with Disabilities Act, in that it “is enforced by private attorneys rather than the government itself due to funding issues.”
But Deputy Attorney General Amie Medley suggested Poway never had to change to by-district elections since there was no allegation racially polarized voting was occurring and “absent a violation, the city wasn’t required to take action.”
The judges rejected that sentiment, with Graber pointing out that the city “took an action it believed to be consistent” with the California Voting Rights Act.
“The reality is, is it not, if the CVRA did not exist, the city of Poway would not have changed its law,” she added.
Medley suggested Higginson had failed to allege he was harmed by only being allowed to vote for one council representative under the new by-district elections. In contrast, he had previously been able to vote for all four council members.
“He’s a voter and if he used to get four votes and now only gets one vote how is that not an injury in fact?” Graber responded.
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